SIXTH AMENDMENT TO MASTER REPURCHASE AGREEMENT (Wachovia Transaction with the NorthStar Entities)
EXECUTION
VERSION
SIXTH
AMENDMENT TO
(Wachovia
Transaction with the NorthStar Entities)
THIS
SIXTH AMENDMENT TO MASTER REPURCHASE AGREEMENT,
dated
as of November 6, 2006 (this “Amendment
No. 6”),
is
entered into by and among NRFC
WA HOLDINGS, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC”),
NRFC
WA HOLDINGS II, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC II”),
NRFC
WA HOLDINGS III, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC III”),
NRFC
WA HOLDINGS IV, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC IV”),
NRFC
WA HOLDINGS V, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC V”),
NRFC
WA HOLDINGS VI, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC VI”),
NRFC
WA HOLDINGS VII, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC VII”),
NRFC
WA HOLDINGS VIII, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC VIII”
and,
together with NRFC, NRFC II, NRFC III, NRFC IV, NRFC V,
NRFC VI and NRFC VII, the “Sellers”),
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as the
buyer (in such capacity, together with its successors and assigns, the
“Buyer”),
NORTHSTAR
REALTY FINANCE CORP.
(together with its successors and permitted assigns, “NorthStar”),
as a
guarantor, and NORTHSTAR
REALTY FINANCE L.P.,
as a
guarantor (together with its successors and permitted assigns, the “Operating
Partnership”
and
together with NorthStar, the “Guarantors”),
NRFC
SUB-REIT CORP.,
as the
pledgor (together with its successors and permitted assigns, the “Pledgor”),
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
(f/k/a
▇▇▇▇▇ Fargo Bank Minnesota, N.A.), as the custodian (in such capacity, together
with its successors and permitted assigns, the “Custodian”),
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as the
swap counterparty (in such capacity, together with its successors and assigns,
the “Swap
Counterparty”)
and as
the bank under the Account Agreement and the Securities Account Control
Agreement (in such capacity, together with its successors and assigns, the
“Bank”).
Capitalized terms used and not otherwise defined herein shall have the meanings
given to such terms in the Repurchase Agreement (as defined below).
RECITALS
WHEREAS,
the
Sellers, the Guarantors and the Buyer are parties to that certain Master
Repurchase Agreement (including all annexes, exhibits and schedules thereto),
dated as of July 13, 2005, as amended by that certain First Amendment to
Master Repurchase Agreement, dated as of August 24, 2005 (“Amendment
No. 1”),
that
certain Second Amendment to Master Repurchase Agreement, dated as of
September 20, 2005 (“Amendment
No. 2”),
that
certain Third Amendment to Master Repurchase Agreement, dated as of
September 30, 2005 (“Amendment
No. 3”),
that
certain Omnibus Amendment to Repurchase Documents and Joinder, dated as of
October 21, 2005 (“Omnibus
Amendment”),
that
certain Fourth Amendment to Master Repurchase Agreement, dated as of October
28,
2005 (“Amendment
No. 4”),
that
certain Fifth Amendment to Master Repurchase Agreement, dated as of
February 28, 2006 (“Amendment
No. 5”)
and
that certain Second Omnibus Amendment to Repurchase Documents, dated as of
June 6, 2006 (“Second
Omnibus Amendment”)
(as
such Master Repurchase Agreement is amended,
modified, restated, replaced, waived, substituted, supplemented or extended
from
time to time,
including pursuant to Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇
▇▇. ▇, the Omnibus Amendment, Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇,
the Second Omnibus Amendment and this Amendment No. 6, the “Repurchase
Agreement”);
WHEREAS,
the
Sellers and the Guarantors desire to make certain modifications to the
Repurchase Documents;
WHEREAS,
the
Buyer is willing to modify the Repurchase Documents as requested by the Sellers
and the Guarantors on the terms and conditions specified herein;
and
WHEREAS,
the
Custodian, the Swap Counterparty, the Pledgor and the Bank are parties to other
Repurchase Documents and related agreements that may be affected, directly
or
indirectly, by this Amendment No. 6 and desire to evidence their agreement
to the amendments and modifications set forth herein.
NOW
THEREFORE,
in
consideration of the foregoing recitals, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto, intending to be legally bound, agree as follows:
Section
1. Amendments
to Repurchase Agreement.
(a) The
following definitions in Section 1(a)
of
Annex I
to the
Repurchase Agreement are hereby amended and restated in their entirety as
follows:
(1) “CDO
Securitization Transaction:
A CDO
securitization transaction involving some or all of the Purchased Assets engaged
in by N-Star REL CDO VIII.”
(2) “Maximum
Amount:
Means
$200,000,000, provided that, during the Temporary Increase Period, upon the
written request of the Sellers, the Buyer may, in its discretion (and in all
cases subject to the Buyer obtaining internal credit approval), increase the
Maximum Amount one (1) or more times to an aggregate amount not to exceed
$750,000,000, which increase(s) shall be set forth in writing and acknowledged
by the Sellers and the Guarantors; provided,
however,
after
the Temporary Increase Period, (i) in the event Purchased Assets are
repurchased and sold into the CDO Securitization Transaction on or prior to
the
Temporary Increase Expiration Date and the Sellers repay the Temporary Increase
Indebtedness plus all accrued and unpaid Price Differential thereon and all
related Breakage Costs on or before the Temporary Increase Expiration Date,
the
Maximum Amount shall be $200,000,000 and (ii) in the event the Sellers do
not satisfy clause (i)
of this
definition, the Maximum Amount shall equal the lesser of (A) the sum of
$200,000,000 and the highest Temporary Increase Amount and
(B) $500,000,000; provided,
further,
however,
on and
after the Facility Maturity Date, the Maximum Amount shall mean the aggregate
Purchase Price outstanding for all Transactions.”
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(3) “Temporary
Increase Amount:
An
amount determined by the Buyer in its discretion, but in any event, not greater
than $550,000,000.”
(b) Clause (iv)
of
Section 24
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(iv) the
Maximum Amount shall thereafter equal the lesser of (A) the sum of
$200,000,000 and the highest Temporary Increase Amount and
(B) $500,000,000, in all cases subject to the definition of Maximum
Amount,”.
(c) Section 26
of
Annex I
to the
Repurchase Agreement is amended by adding the following provision to the end
thereof:
“Notwithstanding
anything contained in Section 26
of this
Annex I
to the
contrary, the Buyer shall not apply the Over-Advance Advance Rate to any new
Purchased Asset after the aggregate Purchase Price for all outstanding
Transactions equals or exceeds $500,000,000 during the Temporary Increase
Period.”
Section
2. Repurchase
Documents in Full Force and Effect as Modified.
Except
as
specifically modified hereby, the Repurchase Documents shall remain in full
force and effect. All references to any Repurchase Document shall be deemed
to
mean each Repurchase Document as modified by this Amendment No. 6. This
Amendment No. 6 shall not constitute a novation of the Repurchase
Documents, but shall constitute a modification thereof. The parties hereto
agree
to be bound by the terms and conditions of the Repurchase Documents, as modified
by this Amendment No. 6, as though such terms and conditions were set forth
herein.
Section
3. Representations.
Each
of
the Sellers, each of the Guarantors and the Pledgor represent and warrant,
as of
the date of this Amendment No. 6, as follows:
(a) it
is
duly incorporated or organized, validly existing and in good standing under
the
laws of its jurisdiction of organization and each jurisdiction where it conducts
business;
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(b) the
execution, delivery and performance by it of this Amendment No. 6 is within
its corporate, company or partnership powers, has been duly authorized and
does
not contravene (1) its Governing Documents or its applicable resolutions,
(2) any Applicable Law or (3) any Contractual Obligation, Indebtedness
or Guarantee Obligation;
(c) no
consent, license, permit, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority or other Person is required
in
connection with the execution, delivery, performance, validity or enforceability
by or against it of this Amendment No. 6;
(d) this
Amendment No. 6 has been duly executed and delivered by it;
(e) this
Amendment No. 6, as well as each of the Repurchase Documents as modified by
this Amendment No. 6, constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors’ rights generally or by
general principles of equity;
(f) no
Default or Event of Default exists or will exist after giving effect to this
Amendment No. 6; and
(g) each
of
the Repurchase Documents is in full force and effect and no Seller, no Guarantor
or the Pledgor has any defense, offset, counterclaim, abatement, right of
rescission or other claims, legal or equitable, available to any Seller, any
Guarantor, the Pledgor or any other Person with respect to this Amendment
▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Documents or any other
instrument, document and/or agreement described herein or therein, as modified
and amended hereby, or with respect to the obligation of the Sellers and the
Guarantors to repay the Obligations and other amounts due under the Repurchase
Documents.
Section
4. Conditions
Precedent.
The
effectiveness of this Amendment No. 6 is subject to the following
conditions precedent: (i) delivery to the Buyer of this Amendment
No. 6 duly executed by each of the parties hereto and consented to by the
Swap Counterparty and the Custodian; (ii) delivery to the Buyer of a
Compliance Certificate executed by the Sellers and the Guarantors acceptable
to
the Buyer in its discretion; (iii) delivery by the Sellers and the
Guarantors to the Buyer of a certification of Purchased Assets intended to
be
repurchased and sold into the up-coming CDO Securitization Transaction;
(iv) the payment of all reasonable legal fees and expenses of ▇▇▇▇▇ &
▇▇▇ ▇▇▇▇▇ PLLC, as counsel to the Buyer, in the amount to be set forth on a
separate invoice; and (v) such other documents, agreements or
certifications as the Buyer may reasonably require.
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Section
5. Miscellaneous.
(a) This
Amendment No. 6 may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument but
all
of which together shall constitute one and the same agreement.
(b) The
descriptive headings of the various sections of this Amendment No. 6 are
inserted for convenience of reference only and shall not be deemed to affect
the
meaning or construction of any of the provisions hereof.
(c) This
Amendment No. 6 may not be amended or otherwise modified, waived or
supplemented except as provided in the Repurchase Agreement.
(d) The
interpretive provisions of Section 1(b)
of
Annex I
of the
Repurchase Agreement are incorporated herein mutatis mutandis.
(e) This
Amendment No. 6 represents the final agreement among the parties and may
not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements between the parties. There are no unwritten oral agreements between
the parties.
(f) THIS
AMENDMENT NO. 6 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AMENDMENT NO. 6 SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS.
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IN
WITNESS WHEREOF,
the
parties have caused this Amendment No. 6 to be executed by their respective
officers thereunto duly authorized, as of the date first above
written.
| THE SELLERS: |
NRFC
WA HOLDINGS, LLC,
a
Delaware limited liability company
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Executive Vice President
Address
for Notices:
NRFC
WA Holdings, LLC
c/o
NorthStar Realty Finance Corp.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention:
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▇. ▇▇▇▇▇▇▇
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Facsimile
No.:
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Confirmation
No.:
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with a copy to:
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
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Attention:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
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| Facsimile No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | |
| Confirmation No.: |
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| THE BUYER: |
WACHOVIA BANK, NATIONAL
ASSOCIATION,
a
national banking association
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By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice President
Wachovia
Bank, National Association
One
Wachovia Center, Mail Code: NC0166
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| Attention: |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President
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| Facsimile No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | |
| Confirmation No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | |
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